Understanding the duty of care in negligence // Negligence EP 1

See this in a video form: http://bit.ly/DutyofCareEP1

1. Overview - duty of care

Negligence is not acting maliciously or with evil intention. It's when someone accidentally does not live up to a standard that we as a society think they should live up to. Therefore, to make someone pay for the damage they accidentally caused you, it needs to be shown that they should have taken more care vis-a-vis you. In other words, it must be shown that you were close to the other party and therefore since you were negligent it's fair for you to owe them for the damage. This is called establishing there is a duty of care.

2. Establishing the duty:

To establish whether there is a duty of care, In New Zealand the courts look at whether it is fair, just and reasonable to require the defendant to owe a duty of care to the plaintiff. This is generally assessed under the two headings of Anns (which comes from the case Anns v Merton London Borough Council [1977] UKHL 4, [1978] AC 728, which are
1. Anns 1. Proximity: relationship of proximity (physical or relational).Foreseeability:  acts you can reasonably foresee would injure your neighbour, or someone who is so closely affected by my acts that you ought reasonably to have them in contemplation as being affected when think of acting or not acting – Lord Atkin, Donoghue.
2. Anns 2. Policy considerations limiting scope of duty. Social or legal implications.

Overall NZ courts will look at whether it’s fair, just and reasonable to impose a duty of care? South Pacific; Rolls Royce. In novel duty situations outcome is partly determined by judicial discretion, so hard to be certain – Cooke P South Pacific.


3. Case examples where a duty of care was or was not established and why:

Bourhill v Young [1943]: No duty of care was established. Motorcyclist owed duty to people he could reasonably foresee would be harmed by his acts/omissions. Mrs Bourhill was not within the area of potential danger (no proximity) either. Overly sensitive.
McCarthy v Wellington City NZ [1966]: Yes, a duty of care was owed. A person storing dangerous explosives on his premises owes a duty of care to keep them secure to all persons foreseeably likely to be injured as a result of a breach of that duty.
North Shore CC v A-G [2012] NZ [The Grange]: No duty of care was owed: All judges said it was arguably foreseeable that either the Council or homeowners would suffer loss if the BIA made a poor job of discharging its functions. But majority found that there was insufficient proximity between the BIA and the Council or homeowners to justify a duty of care.